Ontario Court of Appeal overrules 2001 "Social Host Liability" Decision
14-Aug-2002

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Employers who were concerned about the February, 2001, decision of the Ontario Superior Court in Hunt v. Sutton Group Incentive Realty Inc. ("Hunt") dealing with the liability of employers for the consequences of employee drinking at office functions will be interested in the latest development in this area.

On August 14, 2002, the Ontario Court of Appeal overruled the Superior Court decision, which awarded in excess of $300,000.00 to an employee who, following an office Christmas party, had driven home under the influence of alcohol and was seriously injured in an automobile accident.

In the Hunt case, Sutton Realty was Hunt’s employer and hosted an office Christmas party for its staff which featured an open bar. The office remained open for business throughout much of the party. Hunt was the receptionist for Sutton and continued to monitor the reception area during office hours while also attending the party. The trial judge found that at the party, Hunt drank to excess and was intoxicated when she left. The evidence presented indicated that when Hunt left the Christmas party, she walked with friends to a local pub where they continued to drink for a couple of hours. By the time Hunt left the pub, a severe winter storm had developed and driving conditions had become treacherous. Hunt attempted to drive herself home, but lost control of her vehicle, resulting in an accident with another car. Between the time that Hunt left the pub and the time that the accident occurred, approximately an hour and 45 minutes had elapsed; there was no evidence at trial of Hunt’s activities during this time frame.

Hunt sustained severe injuries in the collision including brain damage. She sued Sutton and alleged that Sutton failed to properly supervise the service of alcohol at the office Christmas party and failed to take appropriate steps to protect her from injury. The trial judge found that Sutton was 25% responsible for Hunt’s injuries and awarded damages to Hunt in the amount of $330,000.00.

What the Ontario Court of Appeal said:

The Ontario Court of Appeal said that the trial judge had made a number of errors in assessing the evidence and directed that a new trial be held. In particular, the Court of Appeal found that the trial judge failed to give proper consideration to the evidence of witnesses who reported that Hunt was not visibly or obviously intoxicated at the time she left the office party. The Court of Appeal held that the trial judge failed to give proper consideration to the evidence of Hunt’s colleagues who had accompanied her to the pub. This evidence indicated that Hunt did not appear to be intoxicated while at the pub. The Court of Appeal further held that the trial judge failed to properly deal with the evidence of a toxicologist who presented expert testimony before the Court. The toxicologist had based her opinion on the following "assumptions":

1. Hunt had not consumed any alcohol prior to the party.
2. Hunt had consumed only two alcoholic drinks at the pub following the party.
3. Hunt had consumed no further alcohol prior to the accident.

The Court of Appeal found that the trial judge improperly overlooked and failed to deal with the gap in evidence relating to Hunt’s whereabouts for approximately one hour and 45 minutes from the time she left the pub until the accident occurred. Accordingly, the Court of Appeal determined that the trial judge did not properly resolve the issue as to whether a line of causation was successfully established by Hunt, sufficient to lead to the conclusion that Hunt’s consumption of alcohol at the office party was the direct and proximate cause of the motor vehicle accident which resulted in her injuries.

Ultimately, the Court of Appeal overturned the trial judge’s decision because she had committed an error of law in discharging the jury and issuing a ruling from the bench rather than allowing the case to be determined by a jury’s verdict. In Ontario, litigants have a statutory right to have a case such as the one presented by Hunt determined by a jury.

Although the Ontario Court of Appeal was critical of the trial judge’s assessment of the evidence in the Hunt case, it did not issue any direction regarding the scope of liability for employers who host social functions which feature the service of alcohol.

Employers must take reasonable steps to protect the safety of employees:

The manner in which the trial judge in Hunt assessed the evidence and the ultimate conclusion on liability provoked criticism and intervention by the Court of Appeal. However, by overturning the trial judge’s decision in Hunt, the Court did not erode the employer’s duty to take reasonable steps to protect the safety of employees when it serves alcohol to those employees. In fact, quite apart from Hunt, recent case law reflects a trend whereby courts are imposing a clear responsibility upon employers who serve alcohol at staff functions to protect the safety of their employees. Consequently, employers who host office parties or staff functions where alcohol is served must implement appropriate procedures to monitor their employees’ consumption and take appropriate steps to protect their safety in order to avoid liability in the event intoxicated employees harm themselves or others.

We encourage you to contact any member of the Labour and Employment Group listed below with questions about the contents of this Client Update.